NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30113
Plaintiff-Appellee, D.C. No. 2:04-cr-06045-EFS-1 v.
JARED RYAN MARCUM, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30116
Plaintiff-Appellee, D.C. No. 4:15-cr-06031-EFS-1 v.
JARED RYAN MARCUM,
Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding
Argued and Submitted November 5, 2019 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District Judge.
Defendant-Appellant Jared Marcum appeals the district court’s rulings
denying his motion to suppress evidence seized from the car in which he was a
passenger; denying his motion to dismiss his indictment based on alleged
prosecutorial misconduct during the grand jury proceedings; denying his motion in
limine to prevent the admission of evidence from a prior narcotics and firearm
arrest; and granting the government’s motion to shackle him during the court
proceedings. Marcum also raises on appeal whether his 24-month sentence for
violating the conditions of his supervised release was substantively reasonable and
whether his conviction for being a felon in possession of a firearm is constitutional
under Rehaif v. United States, 139 S. Ct. 2191 (2019). We discuss Marcum’s
primary contentions in turn.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and
we affirm.
1. Marcum challenges the district court’s denial of his motion to
suppress the drug and firearm evidence that police seized from Jazmin Torres’s car
during an inventory search. We review a district court’s denial of a motion to
** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
2 suppress de novo, but we review the underlying factual findings for clear error.
United States v. Perea-Rey, 680 F.3d 1179, 1183 (9th Cir. 2012). Marcum does
not have standing to challenge the search because, as a passenger in Torres’s car,
he had neither a possessory interest nor a reasonable expectation of privacy in the
car. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005).
Marcum does, however, have standing to challenge the initial stop. See
United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000). To make an
investigatory traffic stop, the police must have a “reasonable suspicion” that an
occupant of the car is engaged in criminal activity. United States v. Lopez-Soto,
205 F.3d 1101, 1104–05 (9th Cir. 2000). Here, the officers had such a reasonable
suspicion because they knew Torres, the car’s registered owner, had an outstanding
arrest warrant. It is reasonable to infer that a car’s registered owner will be driving
or riding in the car, absent evidence showing otherwise. Here, the officers did not
have any evidence that suggested Torres was not in the car, and they could not see
the driver clearly through the car’s tinted windows. In these circumstances, the
officers had a reasonable suspicion to justify the stop, and the stop did not violate
Marcum’s Fourth Amendment rights. We affirm the district court’s denial of
Marcum’s motion to suppress.
2. Marcum challenges the district court’s denial of his motion to dismiss
his grand jury indictment. We review constitutional challenges to a district court’s
3 denial of a motion to dismiss de novo, and we review challenges to indictments
based on a court’s supervisory powers for abuse of discretion. United States v.
Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004). Marcum did not show
outrageous government conduct that violated fundamental fairness and shocked the
general conscience, which was necessary to support his due process claim. Id. at
1238–39. He similarly did not show flagrant prosecutorial misconduct or even a
possibility that the discrepancy in the listed cross streets of the stop and search had
a significant influence on the grand jury’s decision to indict him. See id. at 1239.
We affirm the district court’s denial of Marcum’s motion to dismiss his indictment.
3. Marcum challenges the district court’s denial in part of his motion in
limine to prevent the admission of evidence of his prior narcotics and firearm
arrest. We review a district court’s evidentiary ruling for abuse of discretion.
United States v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015). The district court did
not abuse its discretion by admitting in part the evidence of Marcum’s arrest as
evidence of his motive and intent under Federal Rule of Evidence 404(b). The
district court found that the prior arrest was close in time and factually similar to
the charged offense, and that it tended to prove a material point. See United States
v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The district court properly
weighed the probative value of the evidence against its prejudicial impact under
Federal Rule of Evidence 403 and found that the probative value was not
4 substantially outweighed by any prejudicial impact. See United States v. Romero,
282 F.3d 683, 688 (9th Cir. 2002). Those rulings accorded with settled law. We
affirm the district court’s denial in part of Marcum’s motion in limine.
4. Marcum challenges the district court’s grant of the government’s
motion to shackle him during the court proceedings. We review a district court’s
decision to shackle a defendant for abuse of discretion. United States v.
Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004). The district court appropriately
relied on the U.S. Marshals Service’s recommendation that Marcum’s out-of-court
behavior and heightened danger and flight risk created an “essential state interest”
in shackling Marcum with a single ankle restraint. See Deck v. Missouri, 544 U.S.
622, 628–29 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).
Importantly, the district court took special precautions to ensure that the jury would
neither see nor hear the ankle restraint.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30113
Plaintiff-Appellee, D.C. No. 2:04-cr-06045-EFS-1 v.
JARED RYAN MARCUM, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30116
Plaintiff-Appellee, D.C. No. 4:15-cr-06031-EFS-1 v.
JARED RYAN MARCUM,
Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding
Argued and Submitted November 5, 2019 Seattle, Washington
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District Judge.
Defendant-Appellant Jared Marcum appeals the district court’s rulings
denying his motion to suppress evidence seized from the car in which he was a
passenger; denying his motion to dismiss his indictment based on alleged
prosecutorial misconduct during the grand jury proceedings; denying his motion in
limine to prevent the admission of evidence from a prior narcotics and firearm
arrest; and granting the government’s motion to shackle him during the court
proceedings. Marcum also raises on appeal whether his 24-month sentence for
violating the conditions of his supervised release was substantively reasonable and
whether his conviction for being a felon in possession of a firearm is constitutional
under Rehaif v. United States, 139 S. Ct. 2191 (2019). We discuss Marcum’s
primary contentions in turn.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and
we affirm.
1. Marcum challenges the district court’s denial of his motion to
suppress the drug and firearm evidence that police seized from Jazmin Torres’s car
during an inventory search. We review a district court’s denial of a motion to
** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
2 suppress de novo, but we review the underlying factual findings for clear error.
United States v. Perea-Rey, 680 F.3d 1179, 1183 (9th Cir. 2012). Marcum does
not have standing to challenge the search because, as a passenger in Torres’s car,
he had neither a possessory interest nor a reasonable expectation of privacy in the
car. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005).
Marcum does, however, have standing to challenge the initial stop. See
United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000). To make an
investigatory traffic stop, the police must have a “reasonable suspicion” that an
occupant of the car is engaged in criminal activity. United States v. Lopez-Soto,
205 F.3d 1101, 1104–05 (9th Cir. 2000). Here, the officers had such a reasonable
suspicion because they knew Torres, the car’s registered owner, had an outstanding
arrest warrant. It is reasonable to infer that a car’s registered owner will be driving
or riding in the car, absent evidence showing otherwise. Here, the officers did not
have any evidence that suggested Torres was not in the car, and they could not see
the driver clearly through the car’s tinted windows. In these circumstances, the
officers had a reasonable suspicion to justify the stop, and the stop did not violate
Marcum’s Fourth Amendment rights. We affirm the district court’s denial of
Marcum’s motion to suppress.
2. Marcum challenges the district court’s denial of his motion to dismiss
his grand jury indictment. We review constitutional challenges to a district court’s
3 denial of a motion to dismiss de novo, and we review challenges to indictments
based on a court’s supervisory powers for abuse of discretion. United States v.
Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004). Marcum did not show
outrageous government conduct that violated fundamental fairness and shocked the
general conscience, which was necessary to support his due process claim. Id. at
1238–39. He similarly did not show flagrant prosecutorial misconduct or even a
possibility that the discrepancy in the listed cross streets of the stop and search had
a significant influence on the grand jury’s decision to indict him. See id. at 1239.
We affirm the district court’s denial of Marcum’s motion to dismiss his indictment.
3. Marcum challenges the district court’s denial in part of his motion in
limine to prevent the admission of evidence of his prior narcotics and firearm
arrest. We review a district court’s evidentiary ruling for abuse of discretion.
United States v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015). The district court did
not abuse its discretion by admitting in part the evidence of Marcum’s arrest as
evidence of his motive and intent under Federal Rule of Evidence 404(b). The
district court found that the prior arrest was close in time and factually similar to
the charged offense, and that it tended to prove a material point. See United States
v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The district court properly
weighed the probative value of the evidence against its prejudicial impact under
Federal Rule of Evidence 403 and found that the probative value was not
4 substantially outweighed by any prejudicial impact. See United States v. Romero,
282 F.3d 683, 688 (9th Cir. 2002). Those rulings accorded with settled law. We
affirm the district court’s denial in part of Marcum’s motion in limine.
4. Marcum challenges the district court’s grant of the government’s
motion to shackle him during the court proceedings. We review a district court’s
decision to shackle a defendant for abuse of discretion. United States v.
Fernandez, 388 F.3d 1199, 1245 (9th Cir. 2004). The district court appropriately
relied on the U.S. Marshals Service’s recommendation that Marcum’s out-of-court
behavior and heightened danger and flight risk created an “essential state interest”
in shackling Marcum with a single ankle restraint. See Deck v. Missouri, 544 U.S.
622, 628–29 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).
Importantly, the district court took special precautions to ensure that the jury would
neither see nor hear the ankle restraint. In these circumstances, we conclude that
the shackling did not prejudice Marcum’s right to a fair trial. Williams v.
Woodford, 384 F.3d 567, 592–93 (9th Cir. 2004). We affirm the district court’s
grant of the government’s motion to shackle Marcum during the court proceedings.
5. Next, Marcum claims on appeal that his 24-month sentence for
violating the conditions of his prior supervised release is substantively
unreasonable. We review a district court’s sentence under a reasonableness
standard. United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006).
5 The district court sentenced Marcum to 24 months imprisonment for
violating the terms of his supervised release. This sentence is below the
Sentencing Commission range and under the statutory cap, and the district court
chose to make the sentence concurrent with Marcum’s 300-month sentence for the
indicted offenses, despite the probation officer’s recommendation that the
sentences run consecutively. The district court had more than a sound basis to
sentence Marcum for violating the terms of his prior supervised release, especially
when the supervised release was related to a conviction for an offense similar to
that for which he was convicted in this case. We see no basis on which to consider
this 24-month sentence to be substantively unreasonable. See United States v.
Gonzalez, 906 F.3d 784, 800 (9th Cir. 2018) (“[A] below-Guidelines sentence . . .
will rarely be substantively unreasonable.”). We affirm Marcum’s sentence for
violating his supervised release against this challenge.
6. Marcum also claims on appeal that his conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is unconstitutional
because of the intervening Supreme Court decision in Rehaif v. United States, 139
S. Ct. 2191 (2019). We review this claim for plain error. United States v.
Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019).
The district court clearly erred under Rehaif by not instructing the jury that it
had to find that the government proved beyond a reasonable doubt that Marcum
6 knew he was a felon at the time of the search. Benamor, 937 F.3d at 1188.
Marcum, however, cannot show that, “but for the error, the outcome of the
proceeding would have been different.” Id. at 1189. At the time of the search,
Marcum was subject to the conditions of his supervised release from past felony
convictions, including a conviction for being a felon in possession of a firearm.
There is no reasonable doubt that Marcum knew he was a felon at the time of the
search. Id. Any failure to instruct the jury did not affect Marcum’s substantial
rights or “seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1936); see also
United States v. Olano, 507 U.S. 725, 732 (1993). We affirm Marcum’s
conviction, rejecting his claim that his felon-in-possession conviction is
unconstitutional.
AFFIRMED.